Telangana High Court

Dalu Ramulu Died, vs Anke Anasurya, on 1 November, 2022

Bench: G.Anupama Chakravarthy

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                 SECOND APPEAL No.368 of 2015

JUDGMENT :

This Second Appeal is arising out of the judgment and

decree dated 20.01.2015 in A.S.No.66 of 2006 on the file of III

Additional District Judge (FTC-II) at Khammam which is arising

out of the judgment and decree dated 21.09.2015, passed in

O.S.No.35 of 1996 on the file of Senior Civil Judge, Sathupalli,

Khammam.

2. For the sake of convenience, the parties are referred to as

arrayed before the trial Court. The appellants are the plaintiffs.

3. Initially, the suit was filed by the plaintiffs against defendant

Nos.1 to 11 for partition to divide the suit schedule property into

two equal shares and allot one such share to the plaintiff and for

grant of future mesne profits, with costs. During the pendency of

the suit, the defendant No.8 died and his legal representatives were

brought on record as defendant Nos.2 to 14 and later defendant

No.11 died and his legal representatives were added as defendant

No.15 and 16.

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4. The case of the plaintiff is that in the year, 1965, the plaintiff

and his junior paternal uncle by name Dalu Ankalu had purchased

dry land to an extent of Ac.3-04 gts jointly from one Kona Veera

Raghavulu in Sy.No.199 of Atukuru Village in Madhira Mandal

through an agreement of sale dated 30.03.1965 and took possession

of the said property. The said Dalu Ankalu, who is the close

relative of the plaintiff was not having any issues. The wife of

Dalu Ankalu is Pitchamma and they were not having any other

properties. The plaintiff agreed with Dalu Ankalu to lease the suit

schedule property jointly to others and to receive his share and the

same continued till the death of his uncle i.e., Dalu Ankalu till

1968. The plaintiff filed a suit against Dalu Pitchamma vide

O.S.No.101 of 1982 on the file of Subordinate Judge's Court,

Khammam, for partition as she was not cooperating to get the suit

land partitioned. Dalu Pitchamma died in the year 1986 during the

pendency of the said suit, the legal heirs of Dalu Pitchamma could

not be brought on record and as such, the said suit was dismissed

for default on 09.03.1988.

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5. Thereafter, the plaintiff filed a petition to set aside the

dismissal order vide I.A.No.388 of 1988 and the same was

dismissed, for which the plaintiff was constrained to prefer an

appeal before the District Court, Khammam vide CMA.No.42 of

1989. The plaintiff also filed I.A.No.1544 of 1989 in O.S.No.101

of 1982 to bring the legal heirs of Pitchamma on to the record

along with condone delay petition under Section 5 of the

Limitation Act, 1963. The District Court allowed the petition and

the 1st defendant in the suit has preferred revision before the High

Court of Andhra Pradesh vide CRP.No.3617 of 1991. Further, the

plaintiff filed a petition to review the order in I.A.No.388 of 1988

but O.S.No.101 of 1982 was transferred to Subordinate Judge's

Court, Sathupalli and the said three Interlocutory Applications vide

I.A.No.683 of 1992, I.A.No.684 of 1992 and I.A.No.685 of 1992 in

O.S.No.101 of 1982 were dismissed. Being aggrieved by the same,

the plaintiff preferred three revision petitions against the said I.As.

before the High Court of Andhra Pradesh vide C.R.P.Nos.255 of

1994, 256 of 1994 and 257 of 1994 and the High Court dismissed

all the above three revisions vide common order dated 05.07.1996

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with an observation that a fresh suit for partition was not barred by

res-judicata. Therefore, the plaintiff has filed the present suit for

partition which is subject matter of O.S.No.101 of 1982.

6. It is the further case of the plaintiff that the 1st defendant is

the distant relative of the deceased Dalu Ankalu and Pitchamma.

After the death of the Ankalu in the year 1968, his wife Pitchamma

brought the 1st defendant to her house and defendant Nos.2 to 11

are the persons, who have purchased part of the suit schedule

property. The 1st defendant and Pitchamma during her lifetime got

managed to get their names recorded in the revenue records.

Inspite of requesting for amicable settlement, Dalu Pitchamma did

not cooperate, therefore, the plaintiff filed suit for partition.

7. A detailed written statement was filed by the 1st defendant

denying all the allegations made in the plaint including purchase of

the property by the plaintiff and Dalu Ankalu in the year, 1965. It

is the specific case of the 1st defendant that after the death of Dalu

Ankalu, his wife Pitchamma cultivated the land in her own right

which was inherited from her husband and that she was in

possession of property till 1970. It is further stated that Dalu

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Pitchamma brought up her grand daughter and her sister by name

Anasuya, who is the 1st defendant and the suit schedule land was

orally gifted to the 1st defendant out of love and affection. Further,

Pitchamma executed a settlement deed in favour of the 1st

defendant on 31.12.1981. The revenue authorities have recognized

the rights of the 1st defendant and issued pattadar passbooks in her

favour. It is the further case of the 1st defendant that the suit

schedule land was purchased by late Dalu Ankalu in the year, 1964

and he executed agreement of sale after receiving consideration,

which was lost and that the document which is alleged to have

been filed by the plaintiff is a forged one and hence, prayed to

dismiss the suit.

8. Defendant Nos.2 to 11 also filed a written statement denying

all the allegations made in the plaint. The recitals of the written

statement would disclose that they are not parties to the suit i.e.,

O.S.No.101 of 1982 on the file of Senior Civil Judge's Court,

Khammam and further defendant No.2 purchased an extent of 443

sq.yards from defendant No.1 under a registered sale deed and

since then, defendant No.2 is in peaceful possession and enjoyment

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of the suit schedule property. Likewise, defendant No.3 purchased

the land to an extent of 852 sq.yards on 19.08.1983 through an

agreement of sale from the 1st defendant and later defendant No.1

executed registered sale deed in favour of defendant No.3 on

03.06.1985. Further, defendant Nos.4 to 6 are the brothers, who

purchased Ac.0-20 gts of land from defendant No.1 under

registered sale deed dated 10.08.1990 and as such, they are all in

peaceful possession and enjoyment of the property. Further,

defendant Nos.7 to 10 are brothers and they purchased the land to

an extent of Ac.1-00 gts from defendant No.1 on 12.12.1990 vide

registered sale deed. It is further stated that the defendant Nos.2 to

11 were made parties to the suit, only to harass them and that

neither the plaintiff nor defendant No.1 have any right over the suit

schedule property which was in their possession.

9. Basing on the pleadings, the trial Court has framed the

following issues:-

"1. Whether the plaintiff is entitled for partition and separate possession (1/2) share as prayed for?

2. Whether the plaintiff is entitled for future profits?

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3. Whether the defendant Nos.2 to 11 were unnecessary parties to the suit and thereby the suit is bad for mis-joinder of parties?

4. Whether there is no cause of action to file the suit?

5. Whether the sale deed, dated 12.12.1990 is valid and binding on the plaintiff?

6. To what relief?"

10. On behalf of the plaintiff, P.Ws.1 and 2 were examined and

Exs.A-1 and A-3 were marked and on behalf of the defendants

D.Ws.1 to 7 were examined and Exs.B-1 to B-29 were marked.

11. Basing on the oral and documentary evidence, the trial Court

has dismissed the suit with a finding that the plaintiff is entitled for

partition of suit schedule property into two equal shares and future

mesne profits and as such, suit is dismissed.

12. Being aggrieved by the same, the unsuccessful plaintiff

preferred an Appeal vide A.S.No.66 of 2006, before the III

Additional District Judge (FTC-II) at Khammam. In view of the

death of one of the appellant, appellant Nos.3 to 9 were brought on

record as legal heirs of appellant Nos.1 and 2. At the same time,

respondent No.17 was also brought on record as legal

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representative of the 4th respondent in the appeal. On hearing the

contentions of both the parties, the appellate Court has framed the

following points for consideration:-

"1. Whether the plaintiff and late D.Ankalu purchased the suit land jointly under Agreement of Sale, dated 30.03.1965 as pleaded in the plaint?

2. Whether the plaintiff is entitled for partition of suit property into two equal shres and to allot one such share to the plaintiff?

3. Whether the plaintiff is entitled for future profits?

4. Whether the defendants No.2 to 11 are necessary parties to the suit?

5. Whether there is no cause of action to file suit?

6. Whether the judgment under appeal is not sustainable under law?

7. To what relief?"

13. After considering oral and documentary evidence on record,

the appellate Court has dismissed the appeal confirming the

judgment and decree in O.S.No.35 of 1996 on the file of Senior

Civil Judge Court, Sathupalli, dated 21.09.2005. \

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14. Being aggrieved by the said judgment and decree of the 1st

appellate Court, the present Second Appeal is filed raising the

following substantial questions of law:-

"2. Whether the learned Appellate Court is justified in rejecting the claim of the appellants on the ground that Ex.A-1 Agreement of sale is unregistered as required under Section 17 of the Registration Act even though the said document was already marked in the evidence?

3. Whether the learned Appellate Court is justified in disposing of the appeal without formulating proper points for consideration as contemplated under Order-41, Rule 31 CPC?

4. Whether the suit document Ex.A-1 is compulsory registerable even though the said document is dated 30.03.1965?

5. Whether both the Courts failed to appreciate that in the absence of Ex.A-1, there is no other document to claim any right or title even for the defendants?

6. Whether the learned Appellate Court is justified in rejecting the claim of the appellants even though no documentary evidence is produced by the respondents to show that Dalu Ankalu purchased the land exclusively from Veera Raghavaiah, in which event the Court below ought to have appreciated the fair plea of the

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appellants stating that the said property was purchased jointly, hence suit for partition is maintainable?

7. Whether both the Courts erred in appreciating the evidence and pleadings on record while rejecting the suit claim?"

15. On perusal of the substantial questions of law, it is evident

that they all are related to fact findings of both the Courts below

but not on law.

16. Heard the learned counsel for the appellants. Perused the

record.

17. Learned counsel for the appellants contended that both the

Courts below have rejected the claim of the appellants on the

ground that the agreement of sale is unregistered and registration is

required as per Section 17 of the Registration Act. It is further

contended by the counsel for the appellant that the said document

was marked in evidence, there is no necessity to reject the

agreement of sale.

18. Admittedly, the suit is filed for partition.

Section 17 of the Registration Act, 1908 envisages as under:

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"17. Documents of which registration is compulsory.--(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--

(a) instruments of gift of immovable property;

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and

(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;

(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property. Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees."

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19. It is important to note that if the value of the property is

more than Rs.100/- relating to any immovable property, such

document thereby, be compulsorily registered as per Registration

Act. Admittedly, Ex.A-1 is the agreement of sale, which is an

unregistered document which can be marked as 'exhibit' only for

the purpose of evidence, but it cannot be acted upon and rights

cannot be accrued. Ex.A-1 has to be compulsorily registered, in

order to claim right of title.

20. The present suit is filed by the plaintiffs for partition basing

on Ex.A-1 which is an unregistered document. Therefore, the

plaintiffs cannot accrue any right over the property basing on

unregistered document. Without accruing right over the property,

the plaintiffs cannot seek for partition of suit schedule property.

Therefore, both the Courts below are right in rejecting the claim of

the appellants as he is not the rightful owner of the said property.

Further, the plaintiffs have also failed to prove that they were in

possession and enjoyment of the suit schedule property as owners

having purchased the property under Ex.A-1.

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21. On perusal of Ex.A-1, agreement of sale, it is evident that it

is executed on a stamp paper of Rs.1.50 ps. If at all, the plaintiff

claims that he purchased the land under Ex.A-1 sale deed, he is in

possession of the property, Ex.A-1, sale deed is to be compulsorily

registered under Section 17 of the Registration Act. In the absence

of registration, no title can be passed to the plaintiff under Ex.A-1.

22. It is the contention of the 1st defendant that the she is the

absolute owner of the property and further sold the property to

other defendants under registered sale deeds. It is the further case

of the defendants that grand-daughter of Pitchamma's sister by

name Anasuya was adopted as a pastor child since Pitchamma has

no issues. Further, Pitchamma performed the marriage of 1st

defendant and due to love and affection, given the suit schedule

property as a oral gift, in the year, 1970 and later executed

settlement deed in favour of the 1st defendant on 31.12.1981 and

since then, the 1st defendant is in possession and enjoyment of suit

schedule property without any obstruction. Ex.B-7 is the

settlement deed executed by Pitchamma in favour of the 1st

defendant.

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23. Admittedly, the suit is filed in the year, 1996 and after going

through the recitals of the written statement, the plaintiff has not

filed any rejoinder disputing the registered settlement deed Ex.B-7.

Further, the plaintiff has not made any effort to amend the

pleadings to declare the settlement deed as null and void. It is also

important to note that the plaintiff has filed O.S.No.101 of 1982 on

the file of Subordinate Judge's Court, Khammam against Dalu

Pitchamma for partition and the same was dismissed for default

and as per the observations of the High Court, fresh suit for

partition was not barred by res-judicata, the present suit was filed.

Admittedly, the other defendants are not parties to O.S.No.101 of

1982. If once the property is not in the hands of 1st defendant and

it has been transferred to other defendants by way of regular sale

deed, the suit cannot be maintainable for partition against other

defendants.

24. In a suit for partition, it is for the plaintiff to establish his

right, first over the property and then seek for the relief of partition.

Except Exs.A-1 to A-3, no other documents are filed before the

Court to prove that the plaintiff has right over the property.

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Exs.A-2 and A-3 are no way helpful for the plaintiff to prove his

right and further Ex.A-1 cannot declare the right of the property as

it is an unregistered document which is compulsorily registerable

under Section 17 of the Registration Act.

25. As per Section 17 of the Registration Act, Ex.A-1 should be

compulsorily registerable though it is dated 30.03.1965, as the Act

clearly discloses that any document subsequent to 1964 shall be

compulsorily registerable.

26. It is one of the substantial questions of law raised by the

appellant that the 1st appellate Court has not followed Order 41

Rule 31 of CPC.

Order 41 Rule 31 of CPC reads as follows:-

"Contents, date and signature of judgment:-The judgment of the Appellate Court shall be in writing and shall state:-

(a) the points for determination;

(b) the decision thereon;

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."

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27. On perusal of the judgment of the 1st appellate Court, it is

evident that it is in writing, contained points for determination, the

decision thereon with reasons. The judgment also discloses that

the appellate Court confirmed the findings of the trial Court and it

was signed and pronounced by the Judge, therein. Therefore, the

contention of the learned counsel for the appellant that the

judgment of the 1st appellate Court is not as per Order 41 Rule 31

of CPC, is not tenable.

28. Second Appeal is of the year, 2015 and it underwent

numerous adjournments and still coming up for admission.

29. It is pertinent to mention that there is limited scope under